The Tenth Circuit's recent opinion in Orr v. City of Albuquerque, 2008 WL 2652711 (10th Cir. 2008), seems to me to contain a gross misapplication of Federal Rule of Evidence 408. In Orr, Albuquerque police officers Cynthia Orr and Patricia Paiz claimed that the City of Albuquerque and Mary Beth Vigil, the Personnel Director for the Albuquerque Police Department (APD), discriminated against them on the basis of pregnancy, in violation of the Pregnancy Discrimination Act of Title VII. Specifically, they alleged that when they took maternity leave, the defendants required them to do so in a manner that adversely affected their eligibility for early retirement, limited their ability to work overtime, and differed dramatically from how employees seeking time off for other medical purposes were treated. The defendants responded that they were merely applying a uniform policy applicable to all employees. The district court agreed with the defendants and granted summary judgment in their favor, but the Tenth Circuit reversed based in large part upon evidence that the district court had excluded pursuant to Rule 408.

That evidence was an affidavit by Detective Dita Dow, as well as two appended APD memoranda, suggesting that in 1997 Ms. Vigil treated eight other pregnant female police officers just as she treated plaintiffs in 2000, requiring them to use sick time for maternity leave. Detective Dow indicated that these female officers, through counsel, asked the APD and her to review their cases, emphasizing that other employees were freely allowed to use compensatory and vacation time for FMLA leave. The APD agreed to undertake such a review and, ultimately, seemingly acknowledged Vigil's disparate treatment by restoring all of the pregnant officers' sick leave.

The district court found that this evidence "seem[ed] to contradict statements by...Vigil that [she] interpreted [the APD policy]...to disallow use of compensatory time for parental leave [and] appear[ed] to suggest pregnancy/sex based discrimination by Defendant Vigil beginning at least as of 1997, and therefore evidence of pretext in this case," rather than mere mistake. The district court also found, however, that Detective Dow's evidence implicated compromise discussions between the APD and herself and thus could not be considered under the terms of Federal Rule of Evidence 408, which states:

Rule 408. Compromise and Offers to Compromise

(a) Prohibited uses.—Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim ; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice ; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

emphasized that "Rule 408 does not completely bar the admission of compromise evidence....For example, in a list that is illustrative rather than exhaustive, the Rule states that evidence of other wrongs may be admitted to show ... the absence of mistake...; see also id. (finding that the 'purposes not prohibited' by Rule 408 parallels the 'other purposes' enumerated in Rule 404(b))." (emphasis added) From there, we proceeded to hold that evidence from prior settlements can be "probative on the issue whether the incident involving [the parties in the current dispute] was simply an isolated mistake or, rather, part of a series of incidents that might illustrate outrageous conduct on the part of [the defendant]...."We see no daylight between our ultimate holding in Bradbury and this case. Even if the evidence involving Detective Dow and the other pregnant women implicates compromise discussions to which Rule 408 applies, by its terms Rule 408 and our case law permit the use of such evidence to show not liability per se but the absence of mistake. And that is exactly what plaintiffs properly seek to show in this case-namely, that Ms. Vigil's treatment of Officers Orr and Paiz was not a random accident, as defendants claim, but part of a larger and deliberate pattern of treating pregnant women differently from other employees seeking FMLA leave.

So, why is the Orr opinion such a disaster? Well, let's start with the portion of the opinion I bolded. Contrary to the Tenth Circuit's contention, Federal Rule of Evidence 408 does not state that compromise evidence is admissible to prove "absence of mistake." Maybe the court was confused because, as it later notes in the parenthetical, Federal Rule of Evidence 404(b) does contain such language. But contrary to the Tenth Circuit's claim, the "purposes not prohibited" by Rule 408do not parallel the "other purposes" enumerated in Rule 404(b). Why?

Well, Federal Rule of Evidence 404(b) is an exception to the general propensity character ban. Generally, evidence that someone who had trespassed on property on a past occasion would be inadmissible in his subsequent trial for trespassing because the probative value of the past act would depend on the aphorism, "Once a trespasser, always a trespasser." In other words, it would only be useful to prove that the defendant had a propensity to trespass and that he thus likely acted in conformity with that propensity by trespassing at the time in question.

But let's say that Al trespassed on Brian's property on January 20th, at which time Brian told him that he was on private property. And let's say that Al was later charged with trespassing on Brian's property on July 20th and that his defense was that he thought that he was on public property. Al's prior act of trespassing would be admissible, not to prove propensity/conformity, but to prove the absence of mistake: that the prior act proved that Al must have known that he was on Brian's private property.

But while Brian's prior act would not be offered in this scenario to prove propensity/conformity, it clearly would be offered to prove Brian's liability. Namely, it would be offered to prove that Brian had the required state of mind, or mens rea, to be liable to Al for trespassing. And this is where the comparison drawn by the Tenth Circuit falls apart. The "other purposes" permitted by Federal Rule of Evidence 404(b) are permissible because they are not offered to prove propensity/conformity, but they can be offered to prove liability (or the lack thereof). Conversely, the "other purposes" permitted by Federal Rule of Evidence 408 cannot, by the Rule's terms, be offered to prove liability (or the lack thereof). Thus, the Tenth Circuit's opinion makes no sense, and its comparison of the purposes permitted by Federal Rule of Evidence 404(b) and Federal Rule of Evidence 408 doesn't hold any water.